Washington Unified School District (PERB 0056E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WASHINGTON UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES' ASSOCIATION,
CHAPTER 168,
Enployee 	Organization.
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) Case No. 	S-R-509
PERB Decision No. 56
J u n e 	2 7 , 	1978
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Appearances: 	0. H. Fifi Zeff, Deputy County Counsel, for Washington Unified
School District; and Gerald E. Schwartz, Labor Relations Representative, for
California School Employees Association, Chapter 168.
Before Gluck, Chairperson; Cossack Twohey and Gonzales, Members.
OPINION
On September 8, 	1977 hearing officer Carol Webster issued the attached
proposed decision. 	Thereafter, Washington Unified School District (hereafter
District) filed timely exceptions to the hearing officer's 	proposed decision
which held that cafeteria cook managers, snack bar operators, the fast food operator
and buildings and grounds supervisors are not supervisors within the meaning
of the Educational Employment Relations Act (hereafter EERA).

We have considered the record as a whole and the attached proposed
decision in light of the exceptions filed. 	We affirm the rulings, findings and
conclusions of the hearing officer, as modified herein.
The record shows that cafeteria cook managers hire and fire students,
and the parties stipulated that the fast food operator "supervises" students.
The student employees are not included in the negotiating unit, and the record
does not support a conclusion that cafeteria cook managers and the fast food
operator spend any substantial amount of their time in supervising students.
Rather, once hired and trained, 	the students appear to perform clearly delineated
functions in a routine fashion.
We decline to exclude the cafeteria cook managers and the fast food
operator from the unit on the basis of a sporadic exercise of supervisory authority
over nonunit personnel. 	No danger of conflict of interest is presented. 	Nor
does the infrequent exercise of supervisory authority over nonunit personnel
so ally these employees with management as to create a more generalized
conflict of interest. 	See Adelphi University (1972) 195 NLRB 639, 79 LRRM
1545; Westinghouse Electric Corporation (1967) 163 NLRB 723, 64 LRRM 1440.
ORDER
1. 	The following unit is appropriate for the purpose of meeting and
negotiating, providing an employee organization becomes the exclusive
representative of the unit:
All classified employees including cafeteria cook managers,
snack bar operators, the fast food operator, building and
grounds supervisors, 	excluding noon duty supervisors and
those positions which are lawfully declared management
and confidential.
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2. 	The following job positions are not 	"supervisory11 within the
meaning of Government Code Section 3540 . l(m) 	and shall be included within
the above unit :
Cafeteria Cook Manager
Snack Bar Operator
Fast Food Operator
Building and Grounds Supervisor
Within ten workdays after the employer , posts 	the Notice of Decision,
the employee organization shall demonstrate to the regional director at least
30 percent support in the above unit .
The regional director shall conduct an election at the end of the posting
period if 	the employee organization qualifies 	for the ballot and the employer
does not grant voluntary recognition. 	Voluntary recognition requires majority
proof of support in all cases. 	See Government Code Sections 3544 and 3544.1.
The date used to establish the number of employees 	in the above units
shall be the date of this decision unless another date is deemed appropriate by
the regional director and noticed to the parties. 	In the event another date is
selected, 	the regional director may extend the time for the employee organization
to demonstrate at least 3.0 percent support .in the unit.
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Jerilou Cossack Twohey, 	Member 	Har:ry Gluck Chairperson
Raymond J. 	Gonzales, 	Member, 	dissenting in part :
I dissent from the majority's decision to affirm the hearing officer's
conclusion that cafeteria cook managers and building and grounds supervisors
are not supervisors within the meaning of the EERA .
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In Sweetwater Union High School District, 	its first case on supervisory
issues, the Board decided that since EERA section 3540.l(m) 	is written in the
disjunctive, the performance of, or effective power to recommend, any one of
the enumerated actions is sufficient to make an employee a supervisor. 	In
the same opinion, the Board noted that California's statutory scheme differs
from that of the federal Labor Management Relations Act, as amended, 	in that
public school supervisors are given negotiating rights, while under federal
law, supervisors are not considered employees and thus have no negotiating
rights. 	The Board indicated it would construe the definition of supervisory
employees more broadly than the National labor Relations Board construes its
definition.
In recent cases, 	such as San Rafael City Schools4 and Oakland Unified
School District,5 the majority appears to be moving away from this position.
I strongly oppose this trend and will continue to dissent whenever the facts
indicate that the employees in question clearly perform at least one of the
functions enumerated in the statute.
1(ll/23/76) EERB Decision No. 4.
2The EERA, is codified at Government Code section 3540 et seq. 	Section 3540.l(m)
provides:
"Supervisory employee" means any employee, regardless of job description,
having authority in the interest of the employer to hire, transfer,
suspend, layoff, recall, promote, discharge, assign, reward, or
discipline other employees, or the responsibility to assign work to and
direct them, or to adjust their grievances, or effectively recommend such
action, if, in connection with the foregoing functions, the exercise of
such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment.
J 29 U.S.C, sec. 	151 et seq. 	The Labor Management Relations Act amended the
National Labor Relations Act.
4(10/3/77) EERB Decision No. 32.
5(4/14/78) PERB Decision No. 50.
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Cafeteria Cook Managers
In the present case, 	the cafeteria cook managers are responsible for the
day-to-day operation of the cafeterias. 	In their testimony, all the cook
managers stated that they have the authority to assign work to and direct
their assistants. 	These assistants see themselves as under the direction of
the cook managers. 	When changes in the menu must be made, 	the cook managers
have authority to make them and to direct their assistants as to the changes.
The food services supervisor, 	a management employee responsible for all the
cafeterias of the District, testified that cook managers are "absolutely"
called upon to use their judgment in directing their assistants.
In deciding whether an employee is a supervisor, it is imperative that we
look at the organizational structure as well as the specific duties of the
employees in question. 	In this case, 	if the cook managers are not supervisors,
then the cafeterias supposedly run themselves without any onsite supervision.
Since the food services supervisor disclaims any responsibility for directing
them, 	the cafeteria assistants are claimed to work without supervision. 	I
think this poses an unrealistic situation and would find that the cafeterias
are effectively supervised by the cook managers. 	Federal case law recognizes
the importance of onsite supervision. 	In Vega v. NLRB,6 the First Circuit
stated:
In this case, we regard it as of considerable importance that
if the petitioners were not supervisors, 	the company's employees
were entirely without supervision a large part of the time
[citation omitted]. 	In such circumstances, it was not
unreasonable to conclude that even the relatively small amount of
supervisory power conferred upon and exercised by petitioners
made them representatives of the employer.
6(lst Cir. 1965) 341 F.2d 576 [58 LRRM 2439], cert. den. 382 U.S. 862, affg.
Crimptex, Inc. (1963) 145 NLRB 452.
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In the present case, 	the work of the cook managers and their assistants may,
to some degree, be routine. 	Nevertheless, events happen -which necessitate
changes, and the record shows that it is the cook managers who are responsible
to the District for deciding what to do and directing their assistants. 	I
conclude that the cook managers, because of their authority to run the
cafeterias on a day-to-day basis, are supervisors within the meaning of the
EERA.
The majority notes that the sporadic supervision of non-unit personnel
does not make an employee a supervisor within the meaning of the EERA. 	I agree
that this, 	standing alone, is not enough to remove an employee from the unit,
and would therefore affirm the hearing officer's finding that the fast food
operator is not a supervisor. 	However, 	the fact that cafeteria cook managers
have sole authority to hire and fire student assistants, 	combined with their
authority and responsibility in directing cafeteria assistants who are unit
employees, 	strengthens my conclusion that cafeteria cook managers should be
considered supervisory employees.
Building and Grounds Supervisors
The two building and grounds supervisors have an effective role in hiring
custodians. 	They have the independent authority to prepare and change work
schedules. 	One building and grounds supervisor testified that he inspects the
custodians' work and either corrects faults himself or directs an evening
custodian to do so. 	When he learns of problems from the vice-principal or
through his own observation, he uses independent judgment in deciding whether
to direct a custodian to do the work, 	to correct the problem himself, or to
refer it to the maintenance department. 	The other building and grounds
supervisor doubted his authority to direct employees, but he had held this
position only a short time. 	Both building and grounds supervisors testified
that they would make daily assignments and direct the custodians' work during
the summer.
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As 	I stated in my dissent 	in Oakland, 	it 	is my policy to review thoroughly
the facts 	in each case. 	In the present case, 	I think that there are sufficient
facts 	to find that cafeteria cook managers and building and grounds 	supervisors
exercise supervisory authority. 	In addition, 	I continue to adhere to the
philosophy I articulated in Oakland. 	I believe that public policy considerations .
lead to the conclusion that 	independent, 	viable supervisory units are an
important part of the EERA' s 	statutory scheme and are necessary .11 for the continued
peaceful and uninterrupted education process that taxpayers, 	educators, 	parents
and school children have a right to expect. 11
/ 	/ 	/ 	/ 	'Raymond J. 	Gonzales, 	Member
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STATE OF CALIFORNIA
EDUCATIONAL EMPLOYMENT RELATIONS BOARD
In the Matter of:
WASHINGTON UNIFIED SCHOOL DISTRICT,
Employer,
and
CALIFORNIA SCHOOL EMPLOYEES' ASSOCIATION,
Enployee Organization.
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Case No. S-R-509
PROPOSED DECISION
September 	8, 1977
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Appearances: 0. H. Fifi Zeff, Deputy Counsel, Sacramento County, for '
Washington Unified School District; Gerald E. Schwartz, Labor Relations
Representative, for California School Employees Association, Chapter 168.
Proposed Decision by Carol Webster, Hearing Officer.
PROCEDURAL HISTORY
On April 20, 1976, the Board of Education of the Washington Unified
School District (District) received a request for recognition as exclusive
representative of a unit of classified employeesl from the California
School Employees Association, Riverview Chapter #168 (CSEA). 	The parties
stipulated that the unit as requested was appropriate except for four
positions included in the proposed unit which the District claimed were
supervisory. 	The unit as stipulated to was accepted without inquiry. 	A
hearing was held on Tuesday, March 1, 1977, before Michael Coder, hearing
officer for the Educational Employment Relations Board (EERB)
unit for which CSEA requested exclusive representation is composed of
approximately 260 classified employees as reflected by the public records
of the district. 	CSEA requested all classified employees be designated as
appropriate including but not limited to Food Services, Clerical and
Secretarial, Operations and Maintenance to include custodian/maintenance,
grounds, instructional aides and transportation. 	The unit excludes noon
duty supervisors, and those positions which are lawfully declared manage-
ment, confidential and supervisory,
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Fifteen employees are involved in the four disputed categories which
include: 	ten cafeteria cook managers, one fast food operator, two snack bar
operators and two supervisors of buildings and grounds. 	Each alleged
supervisor oversees the work of one to four employees and in a few cases,
up to eight students.
ISSUES
1. Whether a cafeteria cook manager, 	snack bar operator, 	fast food
operator, and building and grounds supervisor are supervisory employees
within the meaning of Section 3540,l(m) of the Educational Employment
Relations Act.2
DISCUSSION AND CONCLUSIONS
The EERA defines supervisory employee as:
"...any employee, regardless of job description, having authority
in the1 interest of the employer to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline other
employees, or the responsibility to assign work to and direct
them, or to adjust their grievances, or effectively recommend such
action, if, in connection with the foregoing functions, the
exercise of such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment."3
In San Diego Unified School District, the Board interpreted the
requirements of the supervisory definition by stating that:
"This section is written in the disjunctive; therefore, an
employee need not possess all of the enumerated functions or
duties to be a supervisor. 	The possession of any one of the
enumerated duties or the effective power to recommend such
action through the use of independent judgment is sufficient to
make one a supervisor within the meaning of the Act. "4
Each of the disputed positions will be considered separately with a
view toward implementing the above interpretation.
2Government Code Section 3540 et seq, hereinafter referred to as EERA
or the Act.
3Government Code Section 3540.l(m).
4EERB Decision No. 8, at page 9. (February 18, 1977)
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1. Cafeteria Cook Manager
The District seeks to exclude the position of cafeteria cook manager
from the unit claiming that it is supervisory. 	CSEA, asks that the position
be included in the unit.
The cafeteria cook manager is responsible for the production of meals.
She arrives at approximately 6 a.m. and begins the preparation for the day
from a predetermined menu. 	She prepares the main course, does all of the
baking and leaves only the preparation of the salad and setting up of
dishes and utensils to her assistants. 	The several incumbents who testified
indicated that in addition to the major preparation of food, 	they were
required to remain after the assistants left to count the money and process
certain paperwork.
None of the cafeteria 	cook managers who testified believed that she
had the authority to perform those duties outlined in Government Code
Section 3540.l(m). 	A line of questioning intended to show that the
cafeteria cook manager had responsibility for activity within the statutory
definition of supervisor, 	i.e., assigning and directing the work of
others, did not produce evidence sufficient to support a finding that the
cafeteria cook manager has such authority. 	The record shows that menus
were proposed by. supervisors and merely posted by the cafeteria cook
managers. 	Even the evaluations prepared annually on the job performances
of the assistants appear to be unrelated to job advancement or discharge.
Although the witnesses believed that their recommendation of discharge would
be considered by their superiors, 	this appeared to be mere speculation as
there was no evidence that this is in fact the practice in the District.
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In San Diego Unified School District, 	the EERB found the area
cafeteria managers to be supervisors as defined by the Act. 	There each area
manager was responsible for a cluster 	of food preparation kitchens and six
to eight satellite serving kitchens.5 There were between 14 to 20 employees
at each cluster kitchen and at each satellite serving facility. 	Evidence
was presented that the area cafeteria managers directly supervised those
employed at the satellite facilities; 	they had authority to assign overtime,
adjust grievances and to assign and direct the work of employees in the
several locations.
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Clearly the authority possessed by incumbents in the analogous
position in Sari Diego Unified School District is distinguishable from the
cafeteria cook managers in the Washington Unified School District. 	Here
the cafeteria cook managers have a maximum of two cafeteria assistants
and sometimes a few students to more or less oversee. 	The cafeteria cook
managers have no authority to adjust grievances or to prepare work
schedules. 	The mere fact that they have sufficient seniority to command a
higher salary and perform certain tasks in addition those of cooking and
baking does not justify a classification of supervisor under the Act as
interpreted by EERB precedent.
While there are similarities in the posting of work schedules in San Diego
and this case, the critical difference is that in San Diego, at least initially
the work schedules were prepared by the area cafeteria manager. 	In this case, 	the
cafeteria cook managers do not have a role in selecting the menu or preparing
the work schedules of the cafeteria assistants.
5Supra, at page 9.
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Although Section 3540.l(m) is written in the disjunctive, an employee
may be deemed a supervisor if it can be shown that he or she is charged with
any one of the duties outlined herein. 	In the case at hand, there is
insufficient evidence that the cafeteria cook manager possesses or effectively
recommends any exercise of the .authority provided in the section. 	No
evidence shows they have had any role in the selection of assistants. 	In fact,
one cafeteria cook manager testified that replacements were merely sent over
to her without the slightest inquiry into her opinion on the matter. 	These
facts lead to the conclusion that cafeteria cook managers are non-
supervisory employees- and 	therefore should be placed in the unit.
2. Snack Bar Operator
The two snack bars in the District sell soda, sandwiches, and other fast
food. 	The snack bar operators usually work alone, or with the part-time
support of a cafeteria assistant who replaces inventory as it is sold. 	The
snack bar operator is assisted by students who are paid to work during
peak hours.
There was insufficient evidence that the two snack bar operators had
any responsibility for directing the work of others, hiring, 	firing or
using independent judgment while executing responsibilities of the job. 	The
one snack bar operator who testified, Lorraine Hall, stated that she did
not have an assistant and that she had only a "two hour helper." 	This
helper "knows her duties" according to Ms. Hall and needs no supervision.
No other evidence was proffered.
In Foothill-DeAnza Community College District^, 	the Board held that
in the absence of sufficient evidence that an employee performs activities
Decision No. 10, March 1, 1977.
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enumerated in Government Code Section 3540.1(m), an employee will not be found
to be a supervisor within the meaning of the Act. 	The snack bar
operator is found not to be a supervisor.
3. Fast Food Operator
There was no testimony offered at the hearing regarding the job
requirements of the fast food operator. 	There was, on the other hand,
a job description, prepared by the District which was introduced into
evidence.7 The statute, however, emphasizes the actual duties of the
employee rather than a summary listed in a job description. 	It is
acknowledged that students do work along with the fast food operator,
but there is no evidence whatsoever as to the type of relationship between
the fast food operator and the students. 	For these reasons, the District
has not succeeded in showing that the fast food operators are supervisory
employees and therefore they shall be included in the unit.
4. Supervisor of Buildings and Grounds
The District seeks to exclude the supervisor of buildings and grounds
as supervisory personnel. 	CSEA asks that the position be included in the unit.
"7
7' Among the District exhibits was the following duty description for fast food
operators:	,Examples of Duties: Working from a prepared menu, plans, supervises, and performs
work in preparation and serving of school meals, supervises and personally
performs cleaning of kitchen, kitchen equipment, and eating utensils; opens
and closes cafeteria; outlines daily duties and work schedules of kitchen
staff; estimates needed quantities, and requisitions or purchases food
stuffs and supplies; supervises and assists in arranging proper storage of
food and supplies; assists in planning menus; works with custodial and
maintenance staffs in maintenance and operation of the kitchen and equipment;
keeps necessary inventory, costs and sales records; may be required to prepare
daily cash receipts for deposit; makes oral and written reports.
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The supervisor of buildings and grounds is the only member of the
custodial staff who works a day schedule. 	He reports to the principal at
James Marshall High School and to the vice principal at Washington High
School. 	Whenever circumstances require the attention of a janitor during
the day, 	the supervisor of buildings and grounds is notified, usually by
his superior, and he normally does the work himself rather than leaving word
for one of the evening personnel to complete the task.
The supervisor of buildings and grounds relays messages from his super-
visor to the other members of the staff who conduct their major activities in
the evening after the supervisor of buildings and grounds is off duty.
The supervisor of buildings and grounds observes the completed product of
the custodians' work and fills out performance reports. 	As the Board held in
Foothill-DeAnza Community College District, supra, while the supervisor
of buildings and grounds did prepare evaluations, 	they were reviewed by
the next level supervisor who made the ultimate decision. 	This was held
insufficient authority and the Board wrote that in the absence of sufficient
evidence that the custodian was actually performing those duties required of
an employee for supervisory status as defined by the Act, 	the position will
remain part of the unit.
In this case, a supervisor of buildings and grounds testified that he
did not believe that he had the authority to change work schedules of another
worker, 	even though there had been instances where he had ideas which he
felt that, if implemented, would have produced a better job.
The evidence also indicated that his alleged subordinates did not see
him as having supervisory authority. 	In one instance where the supervisor
of buildings and grounds believed he had a better idea for scheduling the
work load, his so-called subordinate told him that he did not have the
authority to do so.
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The authority of the supervisor must be known to those he or she
supervises. 	In South Station Liquor Store, Inc. d/b/a/ Berenson Liquor Mart8,
three assistant store managers were held not to be supervisors by the
NLRB
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9 "even 	though [the] employer's president testified that they possessed
supervisory authority since (1) there is insufficient evidence that assistant
managers or employees with whom they worked were aware of their alleged
supervisory authority; and (2) there is no evidence that assistant managers
ever exercised such authority."
We adopt this rule and find that in order for the employee to be
classified as a supervisor, he or she must actually perform or effectively
recommend the enumerated actions. 	In this case, it does not appear that
such duties were actually performed.
In San Diego Unified School District, supra, the EERB held that "we
do not view physical presence during the entire work shift as a condition
precedent to the finding of supervisory 	status."
1n	
10 There, the building
services supervisor left messages for evening personnel which effectively
directed their work schedules. 	In the case at hand, however, the evidence
indicates that after the initial training period, with the exception of the
routine relay of messages from the principal or vice principal, the supervisor
of buildings and grounds had little or nothing to do with the direction of
other employees.
In conclusion, the evidence does not show sufficient cause for
designating the supervisor of building and grounds to be a "supervisor"
within the meaning of the EERA, and therefore the position shall be included
in the unit.
8223 NLRB No. 159 (1976), 92 LRRM 1083 at 1084.
9 In Firefighters Union v. City of Vallejo, the California Supreme Court held
that 	in the interpretation of language in a California statute, cognizance
should be taken of the decisions of the National Labor Relations Board
interpreting identical or similar language in the Labor Management Relations
Act. 	29 USC 152(11). 	The Labor Management Relations Act amended the
National Labor Relations Act in 1947.
10EERB Decision No. 8, at page 12.
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PROPOSED ORD�R
It is the Proposed Decision that:
1. The following unit is appropriate for the purpose of meeting and
negotiating, providing an employee organization becomes the exclusive
representative of the unit:
All classified employees including cafeteria cook manager,· snack
bar operator, fast food operator, building and 9rounds supervisor
·excluding noon duty supervisors and those J?OSit1ons which are	· ·
lawfully declared managem�nt and confidential.
2. The fallowing job positions are not II supervisory" within the meaning
of Government Code Section 3540.l(m) and shall be included within the above
unit:
Cafeteria Cook Manager
Snack Bar Operator
Fast Food Operator
Building and Grounds Supervisor
The parties have seven' (7) calendar days from receipt of this Proposed
Decision in which to file exceptions in accordance with Section 33380 of the
Rules and Regulations. If no party files timely exceptions, this Proposed
Decision will become a final order on September 20, 1977, and a Notice
of Decision will issue from the Board.
The employee organization shall have the 10 workday posting period of
the Notice of Decision in which to demonstrate to the Regional Director at
least 30 percent support in the above unit. The Regional Director shall
conduct an election at the end of the posting period if the employee
organization qualifies for the ballot and the employer does not grant
·voluntary recognition.
Dated: September 8, 1977
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Carol Webster
Hearing Officer